Citation Nr: 0126175
Decision Date: 11/08/01 Archive Date: 11/20/01
DOCKET NO. 96-46 755 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Columbia, South Carolina
THE ISSUE
Entitlement to service connection for claimed degenerative
arthritis of the lumbar spine with low back pain.
REPRESENTATION
Appellant represented by: South Carolina Department of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
K. J. Loring, Counsel
INTRODUCTION
The veteran had active military service from December 1983 to
April 1985.
This matter initially came to the Board of Veterans' Appeals
(Board) from an August 1996 decision of the RO.
In June 1998, the Board determined that new and material
evidence had been submitted to reopen the veteran's claim and
remanded the case for additional development of the record.
In April 1999 and again in July 2000, the Board was required
to remand the case to the RO for completion of previously
requested development in accordance with Stegall v. West, 11
Vet.App. 268 (1998).
FINDINGS OF FACT
1. The veteran was initially noted to have low back pain
syndrome with minimal degenerative arthritic changes in
connection with a March 1992 VA examination following a low
back injury sustained in May 1991.
2. No competent evidence has been submitted to show that the
veteran has current low back disability related to an injury
that was suffered in service.
3. Neither the currently demonstrated mechanical low back
pain nor the lumbar spine spondylosis with mild disc space
narrowing is shown to have been caused or aggravated by a
service-connected disability.
CONCLUSION OF LAW
The veteran's degenerative arthritis of the lumbar spine with
low back pain is not due to disease or injury that was
incurred in or aggravated by service; nor may arthritis be
presumed to have been incurred in service; nor is not
proximately due to or the result of a service-connected
disability. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137,
5103A, 5107, 7104 (West 1991 & Supp. 2001); 38 C.F.R.
§§ 3.102, 3.303, 3.307, 3.309, 3.310 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that effective November 9, 2000,
the Veterans Claims Assistance Act of 2000 was enacted
(VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107,
5126 (West Supp. 2001)
This law sets forth requirements for assisting a claimant in
developing the facts pertinent to his or her claim. This
change in the law is applicable to all claims filed on or
after the date of enactment of the VCAA, or filed before the
date of enactment and not yet final as of that date. Id; see
also Karnas v. Derwinski, 1 Vet. App. 308 (1991).
The regulations implementing the VCAA are now published at
66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) (to be
codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326).
Except as specifically noted, the new regulations are
effective on November 9, 2000.
In a May 2001 letter, the RO advised the veteran of the new
law and explained the enhanced obligations of the VA in
assisting the veteran with her claim, under the requirements
of VCAA. The RO offered the veteran an opportunity to submit
additional information or request assistance from the VA in
further development of her claim. She failed to respond.
In November 2000 and March 2001, the RO had requested that
the veteran provide information about a specified
rheumatologist in an effort to obtain private medical
records. The veteran failed to respond to the requests.
The United States Court of Appeals for Veterans Claims
(Court), has clearly stated that the duty to assist is "not
a one-way street," and the RO can only proceed so far
without help from the veteran herself. Warmhoff v. Brown, 8
Vet. App. 517, 522 (1996). Thus, the Board finds that the
mandate of the VCAA and applicable regulations has been met
in this case.
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty, or for aggravation of a pre-existing injury
suffered or disease contracted in line of duty. 38 U.S.C.A.
§ 1110; 38 C.F.R. § 3.303.
The regulations also provide that service connection may be
granted for any disease diagnosed after discharge when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R.
§ 3.303(d).
Service connection may also be granted for disability which
is proximately due to or the result of a service-connected
disease or injury. 38 C.F.R. § 3.310(a). When aggravation
of a veteran's nonservice-connected condition is proximately
due to or the result of a service-connected condition, the
veteran shall be compensated for the degree of disability
over and above the degree of disability existing prior to
aggravation. Allen v. Brown, 7 Vet. App. 439 (1995).
A careful review of the record shows that the veteran injured
her knees in service and that she is currently service-
connected for traumatic arthritis of the right ankle and both
knees. She asserts that she has developed degenerative
arthritis of the spine as a result of a fall in service or,
in the alternative, as a result of the already service-
connected problems.
The service medical records in this regard are shown to be
devoid of any notation of complaints or clinical findings
referable to a low back injury or disability. It is shown
that the veteran was injured in a fall from a pole in April
1984 and received treatment for a left knee contusion. There
was no mention of a back injury or symptoms. The veteran was
medically separated from service for chondromalacia and
chronic strain of the left knee. The Physical Evaluation
Board report of October 1984 made no mention of any back
injury or complaint.
Indeed, the initial reference to low back pain is in a May
1991 VA outpatient clinical note. It was noted for clinical
purposes that the veteran had strained her back trying to
catch a child falling from a sofa. The record reflected that
she had a full range of motion, and X-ray studies were
negative. The diagnosis was reported as being that of muscle
spasm.
A VA examination report of March 1992 noted a diagnosis of
low back pain syndrome with minimal degenerative arthritic
changes. There was no record of an X-ray report. A December
1995 VA clinical note noted that the veteran had thrown her
back out while picking up meat.
A June 1996 private chiropractor's statement indicated that
the veteran's low back pain "[might] be secondary to left
knee pain which was injured on 4-30-96." She was referred
to her orthopedic physician. The veteran requested that her
orthopedic physician provide an opinion as to whether the
back pain was related to the knee. This doctor refused,
stating that he was not authorized and could not comment on
that.
During an April 1997 hearing at the RO, the veteran testified
that she first had back problems in 1991 after lifting a load
of laundry and later after trying to catch a falling child.
She also reported that she had injured her left ankle at work
in 1996. The private medical records show a report of injury
to her left knee in April 1996, when she lifted a 30 pound
tub of meat. She testified that she saw a chiropractor who
told her that her back condition was secondary to her knee
injury. She testified that she was currently under
occasional treatment for her back.
The VA examination reports of October 1998 and July 1999
showed that the veteran had suffered from mechanical back
pain without radiculopathy. An X-ray study of the
lumbosacral spine in October 1998 showed mild degenerative
changes throughout the lumbar spine with no change since June
1998.
The July 1999 VA examination report reflected the same
diagnosis of mechanical low back pain with mild degenerative
changes, based upon examination and X-ray report. An
addendum of July 1999 indicated that the findings were
indicative of mechanical back pain and not a radicular type
pain.
An October 2000 VA examination report reflected essentially
the same findings as previous VA reports. The X-ray studies
of the veteran's lumbar spine showed mild spondylosis with
mild L4-5 disc space narrowing. There was mild facet
arthropathy of the lower lumbar spine without subluxation or
fracture injury. The veteran was noted to be followed by a
private rheumatologist, but she stated that she had never had
a private X-ray study. The examiner reported a diagnosis of
mechanical low back pain without radicular symptoms. He
stated that he was unable to "connect this to the previously
noted meniscal injury."
In reviewing the evidence of record, the Board concludes that
there is no medical evidence to link the veteran's claimed
low back disorder to an injury suffered while performing
active military service. In fact, the medical evidence shows
that the veteran did not manifest complaints or findings
referable to the low back until May 1991 when she related her
symptoms to a postservice injury. No competent evidence has
been submitted to support her assertions that any current low
back disability is due to disease or injury that was incurred
in or aggravated by service.
With regard to the chiropractor's statement, the Board notes
that his report was equivocal in relating the veteran's back
pain to a reported 1996 knee injury and not addressing the
fact that the veteran had initially begun complaining of back
problems in 1991, as described hereinabove.
Further, the veteran's treating doctor in 1996 did not offer
a medical opinion to support the finding of a nexus between
the veteran's low back problems and his service-connected
knee disability. As such, the October 2000 VA examiner's
opinion has affirmatively ruled out any such secondary
relationship. Accordingly, the Board finds that the medical
evidence does not serve to establish that the veteran has
current low back disability manifested mechanical back pain
or low back arthritic changes that was either caused or
aggravated by a service-connected disability.
While the veteran reported having ongoing treatment by a
private rheumatologist, the RO was unable to obtain these
records because the veteran failed to respond to inquiries
about the doctor's full name and location.
With regard to the veteran's own statements, which purport to
connect his low back symptoms to service-connected knee
problems, the Board notes that where the determinative issue
is one of medical causation, only those with specialized
medical knowledge, training, or experience are competent to
provide evidence on the issue. See Jones v. Brown, 7 Vet.
App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet.
App. 492, 494-95 (1991).
Accordingly, the Board finds that the preponderance of the
evidence is against the claim of service connection for
degenerative arthritis of the lumbar spine with low back
pain.
It follows that, as the preponderance of the evidence is
against the veteran's claim, the benefit of the doubt
doctrine is not for consideration. 38 U.S.C.A. §§ 1155, 5107
(West 1991 & Supp. 2001); Gilbert v. Derwinski, 1 Vet. App.
49, 54 (1990).
ORDER
Service connection for degenerative arthritis of the lumbar
spine with low back pain is denied.
STEPHEN L. WILKINS
Member, Board of Veterans' Appeals